EXHIBIT 10.31
JOINT SERVICES AGREEMENT
THIS JOINT SERVICES AGREEMENT (the "Agreement") is made and entered into
this 1st day of August, 1997 (the "Effective Date"), by and between PRIZE-ITM,
LTD., a company located in Riga, Latvia ("Prize"), and ALTERNATIVE TECHNOLOGY
RESOURCES, INC., a Delaware corporation ("ATR ").
WITNESSETH:
WHEREAS, ATR desires to obtain trained and qualified Contract Personnel
and Remote Services from Prize by which to fulfill Customer contract
requirements for such Contract Personnel and Remote Services; and,
WHEREAS, Prize desires to provide such trained and qualified Contract
Personnel and Remote Services to ATR in accordance with the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises set forth below, and for
other good and valuable consideration received and to be received, Prize and
ATR agree as follows:
ARTICLE I. AGREEMENT, TERM, AND DEFINITIONS
1.1 AGREEMENT AND TERM. The term of this Agreement shall begin on the
Effective Date and shall continue for a period of five (5) years. Such
term shall be renewable at the end thereof, and at the end of any renewal
period, for successive renewal periods of five (5) years unless terminated
by either party as of the end of any such period upon ninety (90) days
prior written notice to the other party. The parties also agree to review
the Agreement at the end of the first year (from the Effective Date) for
the purpose of amending the Agreement as mutually desired by the parties.
1.2 CERTAIN DEFINITIONS. The following definitions apply to this Agreement:
(a) "FORMER SOVIET BLOC" ("FSB") refers to all of the regions formerly
known collectively as the Soviet Union, plus Poland, Slovakia,
Bulgaria and Hungary.
(b) "CONTRACT PERSONNEL" refers to any information technology
professionals recruited from the FSB by Prize and supplied to ATR
for contractual deployment to Customer sites on a time and materials
basis.
(c) "PRODUCT(S)" refers to any third-party software licenses,
documentation and/or other commodities marketed by ATR and/or Prize.
(d) "REMOTE SERVICE(S)" refers to any systems support, maintenance
and/or development services provided by ATR remotely from sites
other than the Customer's site.
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(e) "CUSTOMER(S)" refers to any third party organization(s) that
purchases Contract Personnel, Products and/or Remote Services for
its own use, whether directly from ATR or indirectly through a Prime
Contractor.
(f) "PRIME CONTRACTOR(S)" refers to any third party organization(s) that
sub-contracts Contract Personnel and/or Remote Services to other
client companies.
ARTICLE II. BUSINESS PERFORMANCE
2.1 BUSINESS PURPOSE AND OBJECTIVES. The mutual overall purpose of the
business relationship between Prize and ATR, as described in this
Agreement, shall be to jointly capitalize on emerging information
technology market opportunities that exist in the United States and the
FSB. The specific mutual objectives of the parties shall initially
include (but are not limited to during the term of the Agreement):
(a) Supplying and deploying Contract Personnel from the FSB to Customers
located throughout the United States and the rest of the world;
(b) Marketing, developing and making available remote services from
various sites within the FSB to customers located throughout the
United States and the rest of the world; and,
2.2 RIGHTS.
(a) ATR shall have the exclusive right to represent and/or market
Contract Personnel recruited and/or trained by Prize and Remote
Services throughout the United States and Canada. This exclusive
right extends to Customers whose parent company headquarters are in
the United States or Canada even though the Contract Personnel may
be placed at subsidiary, organizational division or affiliate
locations outside of the United States or Canada. ATR shall also
have a non-exclusive right to represent and/or market Contract
Personnel recruited and/or trained by Prize, and Remote Services
throughout the rest of the world.
(b) ATR hereby grants to Prize the exclusive right to supply Contract
Personnel and Remote Services to ATR from the FSB.
2.3 RESPONSIBILITIES OF PRIZE. In fulfillment of its performance obligations
under this Agreement, Prize shall be responsible for:
(a) Recruiting qualified Contract Personnel from the FSB as candidates
for subsequent selection and placement in ATR Customer contracts;
(b) Administering effective training programs for such recruited
Contract Personnel in appropriate technical topics, orientation to
employment in specific customer locations, and the English language;
(c) Administering logistical support in Riga and other cities of the
FSB;
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(d) Developing and implementing a business and organizational
infrastructure for the Riga Software Development Center ("RSDC")
based on a plan developed jointly with ATR;
(e) Performing the business liaison role (including policy compliance)
concerning all governmental agencies based in the FSB.; and,
(f) Marketing, site development and management and customer service for
Remote Services provided in Latvia and the rest of the FSB.
2.4 RESPONSIBILITIES OF ATR. In fulfillment of its performance obligations
under this Agreement, ATR shall be responsible for:
(a) Marketing Contract Personnel and Remote Services to prospective
Customers and/or Prime Contractors;
(b) Negotiating terms and completing new contracts with Customers and/or
Prime Contractors for Contract Personnel and Remote Services;
(c) Sponsoring the visas and/or green cards of Contract Personnel while
they are working under Customer contracts in the United States;
(d) Performing the business liaison role including policy compliance
concerning all governmental agencies in the United States and other
countries outside the FSB countries where Contract Personnel are
employed;
(e) Managing all aspects of the Customer and Prime Contractor
relationships, including (without limitation) billing, collection,
performance feedback, Contract Personnel deployment, and
correspondence;
(f) Receiving and recognizing all Customer and Prime Contractor revenues
and incurring all expenses directly associated with providing
Contract Personnel and Remote Services;
(g) Providing, licensing and/or loaning all equipment and/or software
determined by ATR or its Customers to be necessary to perform
business requirements at Prize;
(h) Facilitating, if required, the funding of software development
centers established in the Former Soviet Union, such as the RSDC;
and,
(i) Supporting the establishment and management of marketing
relationships as necessary between third-party western Product
vendors and Prize and/or ATR.
2.5 BUSINESS PLANNING AND MANAGEMENT. The following activities shall be
jointly undertaken by the parties in order to define, establish, initiate
and manage the business venture:
(a) Development of a business model, including (without limitation) the
definition and documentation of:
(i) Business procedures and entity relationships;
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(ii) Financial strategy (revenues, fixed and variable costs,
compensation strategy, budgets), and,
(iii) Organization strategy (roles, responsibilities, reporting
relationships).
(b) Development of an annual business plan, including (without
limitation) the definition and documentation of:
(i) Specific business and competitive response objectives and
activities;
(ii) Marketing, cost containment and infrastructure development
strategies;
(iii) Revenue, expense and profit projections and budgets; and,
(iv) Performance measurements, methods management criteria and
procedures.
(c) Monthly operational and financial reporting.
(d) Quarterly and annual management reviews of the business plan (vs.
actual performance).
(e) Cessation of Recruiting Function. If during any annual plan, or
quarterly review the parties agree to discontinue the recruiting for
which Prize is responsible and compensated, Prize and ATR will
identify the costs of such functions and delete them from the budget
for operations. At the time of this function cessation, Prize and
ATR will agree on a method of compensation for Prize based on the
revenue associated with the continuation of work performed by ATR
contracted services employees originally provided by Prize.
ARTICLE III. PAYMENTS
ATR will pay Prize for performing its obligations as described above by a
combination of payments in accordance with Appendix A.
ARTICLE IV. TERMINATION
4.1 TERMINATION FOR CAUSE. In the event that either party materially defaults
in its performance under this Agreement and fails to either substantially
cure such default within ninety (90) days after receiving written notice
specifying the default, then the party not in default may, by giving the
defaulting party not less than ten (10) days prior written notice of
termination, terminate this Agreement as of a date specified in such
notice of termination.
4.2 TERMINATION FOR INSOLVENCY OR BANKRUPTCY. In the event that either party
becomes or is declared insolvent or bankrupt, or is the subject of any
proceedings relating to its liquidation or insolvency, then the other
party may, by giving such party ten (10) days prior written notice of
termination, terminate this Agreement as of a date specified in such
notice of termination.
4.3 TERMINATION FOR CESSATION OF BUSINESS. In the event that either party
declares in writing its intent to cease its activity in the business
objectives generally described in Article 2.1 above, or declares it is
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unable to meet its financial obligations to the other party, then the
other party may, by giving such party ten (10) days prior written notice
of termination, terminate this Agreement as of a date specified in such
notice of termination.
ARTICLE V. REPRESENTATIONS, WARRANTIES,
INDEMNITIES, AND LIABILITIES
5.1 REPRESENTATIONS AND WARRANTIES.
(a) Prize represents and warrants that:
(i) Prize has not and shall not enter into any agreement or
commitment that is inconsistent with or conflicts with the
rights granted to ATR in this Agreement.
(ii) All information provided by Prize (including, but not limited
to, resumes, interviews, test results, and references) in
consideration for the placement of Contract Personnel into ATR
Customer service contracts is and in the future shall be true
to the best of Prize's knowledge.
(b) ATR represents and warrants that:
(i) ATR has not and shall not enter into any agreement or
commitment that is inconsistent with or conflicts with the
rights granted to Prize in this Agreement.
All information provided by ATR (including, but not limited to job
specifications, customer requirements, sales forecasts) shall be
true to the best of ATR's knowledge.
5.2 PERSONAL INJURY AND PERSONAL PROPERTY INDEMNITY. Prize and ATR each shall
indemnify, defend, and hold harmless the other party from and against any
and all claims, actions, damages, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
relating to or arising out of: (a) the death or bodily injury of any
agent, employee, customer, business invitee, or business visitor of the
indemnitor, and (b) the damage, loss, or destruction of any personal
property of the indemnitor.
5.3 LIMITATION OF LIABILITY. Neither party shall be liable to the other
pursuant to this Agreement for any indirect, consequential, punitive, or
other damages of any party, including third parties, or for the loss of
anticipated profits or other economic loss of any party or for damages
that could have been avoided, using reasonable diligence, by the other
party. The foregoing shall not limit the indemnification, defense and
hold harmless obligations set forth in this Agreement.
5.4 SURVIVAL. The provisions of this Article shall survive the term or
termination of this Agreement for any reason.
ARTICLE VI. MISCELLANEOUS
6.1 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING. This Agreement shall be
binding on the parties and their respective successors and assigns, and
except as specified, neither party shall have the power to assign this
Agreement nor to subcontract or delegate any of its duties or obligations
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to be performed as set forth in this Agreement to any third party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld. Consent to an assignment or a subcontract shall
not relieve the assigning party of full responsibility for complete
performance of all of its obligations set forth in this Agreement, and
such assigning party shall remain responsible for any assignee's or
subcontractor's compliance with the non-disclosure and confidentiality
provisions set forth in this Agreement.
6.2 COUNTERPARTS. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties.
6.3 HEADINGS. The Article and Section headings used in this Agreement are for
reference and convenience only and shall not enter into the interpretation
hereof.
6.4 RELATIONSHIP OF PARTIES. Prize and ATR each is performing pursuant to
this Agreement only as an independent contractor. Nothing set forth in
this Agreement shall be construed to create the relationship of principal
and agent between Prize and ATR. Neither Prize nor ATR shall act or
attempt to act or represent itself, directly or by implication, as an
agent of the other party or its affiliates or in any manner assume or
create, or attempt to assume or create, any obligation on behalf of, or in
the name of, the other party or its affiliates.
6.5 CONFIDENTIALITY. Prize and ATR each agree that all information
communicated to one by the other or the other's affiliates, whether before
or after the Effective Date, shall be received in strict confidence, shall
be used only for purposes of this Agreement, and shall not be disclosed by
the recipient party, its agents or employees without the prior written
consent of the other party. Each party agrees to take all reasonable
precautions to prevent the disclosure to outside parties of such
information, including, without limitation, the terms of this Agreement,
except as required by legal, accounting, or regulatory requirements beyond
the reasonable control of the recipient party. Information shall not be
deemed to be confidential information of the disclosing party if it: (a)
was or becomes generally available to the public other than as a result of
disclosure by the recipient party in violation of this Agreement, (b)
becomes available to the recipient party from a source other than the
disclosing party, provided that the recipient party has no reason to
believe that such source is itself bound by a confidentiality or
nondisclosure agreement with the disclosing party or otherwise prohibited
from disclosing such confidential information by a legal, contractual or
fiduciary obligation, (c) was in the recipient party's possession prior to
receipt from the disclosing party, or (d) is independently developed by
the recipient party without the use of the disclosing party's information.
The disclosure restriction of this paragraph shall not apply to the
disclosures permitted under Section 6.6 and to any information that either
party in good faith determines is required to disclose pursuant to the
securities laws or any other laws or governmental regulations so long as
the disclosing party: (a) uses its best efforts and exercises all rights
available to the disclosing party to maintain the confidentiality of the
existence, terms, and conditions of this Agreement, (b) informs the other
party of any necessity or requests for disclosure pursuant to the Freedom
of Information Act or any other law or regulation prior to making any such
disclosure, (c) allows the other party a reasonable opportunity to provide
input with respect to any disclosure required to be made by the disclosing
party pursuant to the securities laws, and (d) allows the other party to
contest any such request and, if applicable, participate in any resulting
proceedings through counsel of the other party's choosing and at the other
party's expense. The provisions of this Section shall survive the term or
termination of this Agreement for any reason for a period of two (2)
years.
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6.6 MEDIA RELEASES. All media releases and similar public announcements by a
party relating to this Agreement or the subject matter of this Agreement,
including, without limitation, promotional or marketing material, but not
including any announcement intended solely for internal distribution by
such party or any disclosure required by legal, accounting, or regulatory
requirements beyond the reasonable control of such party, shall be
coordinated with and approved by the other party in a timely and
reasonable manner prior to release.
6.7 DISPUTE RESOLUTION. In the event of any disagreement regarding
performance under or interpretation of this Agreement and prior to the
commencement of any formal proceedings, the parties shall continue
performance as set forth in this Agreement and shall attempt in good faith
to reach a negotiated resolution by designating a representative of
appropriate authority to resolve the dispute. Any dispute, controversy,
or claim arising out of, connected with, or relating to this Agreement, or
the breach, termination, validity, or enforceability of any provision of
this Agreement, which the parties are unable to resolve as set forth in
the first sentence of this Section will, on the written demand of either
party to the other party, be resolved by arbitration. Said arbitration
shall be conducted in Sacramento County, California in accordance with and
subject to the Commercial Arbitration Rules of the American Arbitration
Association then in effect by a panel of three (3) arbitrators selected in
accordance with those Rules. The decision of the arbitration panel shall
be final and binding on the parties. Judgment thereon shall be entered in
any court of competent jurisdiction, or application may be made to such
court for a judicial acceptance of the award and an enforcement, as the
law of the jurisdiction may require or allow. During any arbitration
proceeding(s), the parties shall continue to perform according to the
terms and obligations of this Agreement. Notwithstanding the foregoing,
the fact that arbitration has or may be invoked will not impair the
exercise of any termination rights under this Agreement. Nothing herein
contained shall bar the right of either party to seek to obtain injunctive
relief or other provisional remedies against threatened or actual conduct
that will cause loss or damages under the usual equity rules including the
applicable rules for obtaining preliminary injunctions and other
provisional remedies. The cost of arbitration, including the fees of the
arbitration panel, shall be borne equally by the parties.
6.8 NOTICES. Whenever one party is required or permitted to give notice to
the other pursuant to this Agreement, such notice shall be deemed given
when delivered in hand, when received by the other party by registered or
certified mail, return receipt requested, postage prepaid, or when
received by the other party from a third party courier service where
receipt is verified by the receiving party's acknowledgment, and addressed
as follows:
In the case of Prize:
Prize-ITM, Ltd.
Reg. Nbr. 40003334904
One Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx XX-0000
In the case of ATR:
ALTERNATIVE TECHNOLOGY RESOURCES, INC.
000 X Xxxxxx
Xxxxxxxxxx, XX. 00000
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Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective. First class, postage
prepaid mail shall be acceptable for provision of change of address
notices.
6.9 SEVERABILITY. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable, or void, then
both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its
intent. If that is not possible, another provision that is legal and
enforceable and achieves the same objectives shall be substituted. If the
remainder of this Agreement is not affected by such declaration or finding
and is capable of substantial performance, then the remainder shall be
enforced to the extent permitted by law.
6.10 WAIVER. Any waiver of this Agreement or of any covenant, condition, or
agreement to be performed by a party under this Agreement shall: (i) only
be valid if the waiver is in writing and signed by an authorized
representative of the party against which such waiver is sought to be
enforced, and (ii) apply only to the specific covenant, condition or
agreement to be performed, the specific instance or specific breach
thereof and not to any other instance or breach thereof or subsequent
instance or breach.
6.11 REMEDIES. Except as otherwise provided in this Agreement, all remedies
set forth in this Agreement, or available by law or equity, shall be
cumulative and not alternative, and may be enforced concurrently or from
time to time.
6.12 SURVIVAL OF TERMS. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration.
6.13 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the general corporation law of the state of Delaware and
in all other respects with the law of the state of California.
6.14 ENTIRE AGREEMENT. This Agreement constitutes the entire and exclusive
statement of the agreement between the parties with respect to its subject
matter and there are no oral or written representations, understandings or
agreements relating to this Agreement which are not fully expressed in the
Agreement. This Agreement shall not be amended except by a written
agreement signed by both parties.
IN WITNESS WHEREOF, Prize and ATR acknowledge that each of the provisions
of this Agreement were expressly agreed to and have each caused this
Agreement to be signed and delivered by its duly authorized officer or
representative as of the Effective Date.
ALTERNATIVE TECHNOLOGY RESOURCES, INC. PRIZE-ITM, LTD.
By: /S/ By: /S/
Printed Name: X. X. Xxx Xxxxxx Printed Name: V. V. Zhilinsky
Title: President Title: President
Date: August 1, 1997 Date: August 1, 1997
By: /S/
Printed Name: W. Xxxxxx Xxxx
Title: Chief Executive Officer
Date: August 19, 1997
